WASHINGTON LEGAL FOUNDATION, APPELLANT V. UNITED STATES DEPARTMENT
OF JUSTICE, ET AL
PUBLIC CITIZEN, APPELLANT V. UNITED STATES DEPARTMENT OF JUSTICE,
ET AL.
No. 88-429, 88-495
In the Supreme Court of the United States
October Term, 1988
On Appeal from the United States District Court for the District of
Columbia
Memorandum for the Federal Appellee
Appellants Public Citizen and Washington Legal Foundation (WLF)
have appealed the district court's judgment that the application of
the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 1-14, to the
American Bar Association Standing Committee on Federal Judiciary
violates Article II of the Constitution and the separation of powers
doctrine by interfering with the President's ability to obtain
confidential advice about the qualifications of potential nominees to
the federal bench.
1. a. The President is responsible for nominating the Justices of
the Supreme Court and the judges of the lower federal courts. In
deciding on such nominations, the President relies on advice from a
federal judicial selection committee composed of several senior
officials at the White House and the Department of Justice. J.S. App.
5a. /1/ As part of the process of advising the President, for the
last 36 years the Justice Department has confidentially provided the
names of potential nominees to the American Bar Association Standing
Committee on Federal Judiciary (ABA Committee) to obtain its opinion
of potential nominees' qualifications.
The ABA Committee is a private entity consisting of 14 members
drawn from the 328,000-member American Bar Association, which is also
a private organization. J.S. App. 4a. At the Department's request, a
potential judicial nominee completes a questionnaire designed by the
ABA Committee and submits it to the Assistant Attorney General for the
Office of Legal Policy, to the Chair of the ABA Committee, and to the
Committee member who represents the relevant federal judicial circuit.
Id. at 5a-6a. Using the answers to this questionnaire, a committee
member (ordinarily, the ABA Committee circuit representative) examines
the candidate's legal writings and interviews a sample of state and
federal judges, lawyers, and law professors in the potential nominee's
community, as well as members of professional organizations and other
groups interested in the nomination process. Id. at 6a; American Bar
Association Standing Committee on Federal Judiciary: What It Is And
How It Works 6 (1983) (hereinafter ABA Committee). During this
process, the potential nominee meets with one or more members of the
ABA Committee. Ibid. All details of the review process are kept
confidential. J.S. App. 6a &n.20.
After that investigative process is completed, the ABA Committee
representative prepares for the Chair and informal written report,
which includes a summary of the candidate's background, a summary of
all interviews (including the interview held with the candidate), an
evaluation of the candidate's qualifications, and a recommended
rating. ABA Committee 6. The Chair then provides the Justice
Department with an informal evaluation of the candidate, and the Chair
passes along the substance of the report with a tentative rating, both
of which are confidential. Ibid.; J.S. App. 6a. If the Justice
Department so requests, a formal report on the candidate is prepared,
and the full ABA Committee is polled on the candidate's rating. The
Chair then reports the Committee's final rating to the Justice
Department and indicates whether it is unanimous. ABA Committee 7.
On some occasions, Justice Department officials discuss with the ABA
Committee the initial evaluation and rating. See Declaration of Steve
A. Matthews 4 (Dec. 18, 1986); Confirmation Hearings on Federal
Appointments: Hearings Before the Senate Comm. on the Judiciary, 98th
Cong., 2d Sess., Pt. 3, at 272-275 (1984). The reasons for the final
rating are sometimes revealed to the Justice Department, although the
ABA Committee's sources and internal report remain confidential. J.S.
App. 6a n.20. /2/ Finally, after considering the ABA Committee rating
along with other information gathered by the government and submitted
by the candidate, the Attorney General recommends to the President
whether a candidate should be nominated for the federal bench. Id. at
7a.
b. The FACA, 5 U.S.C. App. 1-14, was enacted in 1972. It imposes
various requirements on advisory committees that are "established by
statute or reorganization plan," or that are "established or utilized
by the President" or (with certain exceptions) "one or more (Executive
Branch) agencies." 5 U.S.C. App. 3(2)(A), (B), and (E). For example,
a charter describing the committee's objectives and operations must be
prepared before the committee can meet and take action. 5 U.S.C. App.
9(c). For advisory committees utilized by the Executive Branch, the
statute requires, among other things, that there be timely notice of
the committee's meetings and that, subject to a provision of the
Government in the Sunshine Act, 5 U.S.C. 552b(c), committee meetings
be open to the public. Interested parties must also be allowed to
appear before or file statements with the committee. 5 U.S.C. App.
10(a)(3). Advisory committees must keep detailed minutes and
transcripts of their meetings, and, subject to the provisions of the
Freedom of Information Act, 5 U.S.C. 552, all records, transcripts,
and other documents made available to or prepared for or by the
committee must be available for public inspection and copying. 5
U.S.C. App. 10(b) and (c). Each advisory committee must have a
designated federal officer or employee to chair or attend each
committee meeting. That official has the sole power to call or
adjourn committee meetings, and to approve the agenda in advance. No
meetings may be held in the absence of that official. 5 U.S.C. App.
10(e) and (f).
Since 1974, the Justice Department has formally taken the position
that the ABA Committee is not subject to the FACA. /3/ Accordingly,
neither the Department of Justice nor the ABA Committee has followed
the act's requirements in connection with the Department's
consideration of candidates for the federal bench.
c. In December 1985, appellant WLF filed an action in the United
States District Court for the District of Columbia against appellee
American Bar Association, the ABA Committee, and various private
parties, alleging that the ABA Committee is subject to the FACA and
must comply with its mandates. The district court dismissed the suit,
ruling that the FACA does not supply private parties with a cause of
action against a private entity that is not established or financed by
the federal government. Washington Legal Foundation v. American Bar
Ass'n, 648 F. Supp. 1353 (D.D.C. 1986), appeal pending, No. 87-7022
(D.C. Cir.).
Shortly before that suit was dismissed, appellant WLF filed this
action in the same court against appellee Department of Justice.
Appellant Public Citizen subsequently intervened in this action. Both
parties asserted that the FACA applies to the ABA Committee and that
the government should be enjoined from obtaining that committee's
advice in the judicial nomination process until the requirements of
the FACA are satisfied. Appellant WLF also sought access from the
Justice Department to records of the ABA Committee. The Justice
Department argued that the FACA did not apply to the ABA Committee and
that, if it did, the FACA would unconstitutionally interfere with the
President's ability to obtain the advice necessary to decide whether
to nominate an individual to the federal bench.
In August 1988, the district court dismissed the suit. The court
agreed with appellants that the ABA Committee is an "advisory
committee" under the FACA and is therefore subject to its requirement.
J.S. App. 7a-14a. The court agreed with the Department of Justice,
however, that the application of the FACA to the ABA Committee would
unconstitutionally interfere with the President's ability to obtain
advice on the question whether to nominate an individual for the
federal bench. Id. at 15a-26a. /4/
d. The judgment of the district court (J.S. App. 28a) was entered
on August 4, 1988. A notice of appeal in No. 88-429 was filed on
September 1, 1988 (id. at 29a), and the jurisdictional statement was
docketed on September 9, 1988. A notice of appeal in No. 88-494 was
filed on August 26, 1988 (88-494 J.S. 1a-2a), and the jurisdictional
statement was docketed on September 22, 1988. The jurisdiction of
this Court is invoked under 28 U.S.C. 1252. /5/
2. The district court's holding that the FACA applies to the ABA
Committee and is unconstitutional as applied presents substantial
questions that should be resolved by this Court after plenary review.
We therefore agree with appellants that this Court should note
probable jurisdiction over the appeals in Nos. 88-429 and 88-494.
Because both appeals present the same questions, they should be
consolidated in this Court. /6/
Respectfully submitted.
CHARLES FRIED
Solicitor General
NOVEMBER 1988
/1/ This committee consists of the Attorney General; the Counsel,
Deputy Counsel, and Associate Counsel to the President; two
Presidential Assistants; the Director of Presidential Personnel; the
Deputy Attorney General; the Counselor to the Attorney General; and
the Assistant Attorney General and Deputy Assistant Attorney General
for the Office of Legal Policy. 88-429 J.S. App. 5a n.10. (Unless
otherwise noted, all references to J.S. App. will be to the appendix
to the jurisdictional statement in No. 88-429.)
/2/ If the candidate is nominated, the ABA Committee rating is
disclosed during the Senate confirmation hearings. J.S. App. 7a.
/3/ In 1973 and 1974, the Department of Justice considered this
question and applied the same two-step analysis used by the district
court in this case. As an initial matter, the Department concluded
that the ABA Committee was covered by the statute. After consultation
with the ABA, during which the ABA expressed its unwillingness to
continue to advise the President if the ABA were required to comply
with the FACA, in a subsequent examination the Department further
concluded that the application of the statute to the ABA in this
context violated the Constitution. Among those at the Department who
participated in the examination was Justice Scalia, who was serving as
Assistant Attorney General in charge of the Office of Legal Counsel
during part of that period.
/4/ Appellee American Bar Association intervened in this case after
the district court entered judgment.
/5/ Section 1 of the Act of June 27, 1988, Pub. L. No. 100-352, 102
Stat. 662, repealed 28 U.S.C. 1252 effective September 25, 1988.
Section 7, 102 Stat. 664. That repeal does not affect this case,
because it "shall take effect ninety days after the date of the
enactment of this Act" and "shall not apply to cases pending in the
Supreme Court on the effective date * * * or affect the right to
review or the manner of reviewing the judgment or decree of a court
which was entered before such effective date." Ibid.
/6/ In the earlier suit involving appellant WLF and the ABA
Committee, Washington Legal Foundation v. American Bar Ass'n, supra,
the district court considered the question whether appellant WLF had
standing to challenge the ABA Committee's noncompliance with the FACA.
We will address that question and other related preliminary matters
in our brief on the merits.